In case where the registration of ownership transfer has been made in the third party on the disputed real estate after the provisional disposition was cancelled by the execution of the judgment revoking the provisional disposition, whether the benefit of the applicant for provisional disposition is lost (affirmative)

If a provisional disposition is cancelled by the execution of a judgment revoking a provisional disposition, the effect of the provisional disposition becomes final and conclusive. Thus, a person who has received the ownership transfer registration for the real estate thereafter may oppose the applicant of the provisional disposition with the effect of acquiring the ownership without any restriction on the real estate, and as such, if the ownership transfer registration has already been made in the third party on the real estate in dispute, the applicant of the provisional disposition has no interest in requesting the order of prohibition of the provisional disposition any longer.

Articles 714(1), 716, and 719 of the Civil Procedure Act

Supreme Court Order 89Da22 delivered on July 28, 1990 (Gong1990, 1949) Supreme Court Decision 93Da60274 delivered on August 22, 1995 (Gong1995Ha, 3231)

Creditor (Attorney Lee Jae-chul, Counsel for the plaintiff-appellant)

Debtor 1 and one other (Law Firm Squa, Attorneys Park Dong-dong et al., Counsel for the defendant-appellant)

Seoul High Court Decision 95Na8432 delivered on August 13, 1996

The judgment below is reversed, and the application for provisional disposition of this case is dismissed. The total costs of lawsuit are assessed against the debtor.

We examine ex officio.

Where a provisional disposition is cancelled by the execution of a judgment revoking the provisional disposition, the effect of the provisional disposition is final and conclusive (see, e.g., Supreme Court Order 89Da22, Jul. 28, 1990; Supreme Court Decision 93Da60274, Aug. 22, 1995). A person who received the ownership transfer registration on the real estate thereafter may oppose the applicant for the provisional disposition without any restriction on the real estate.

If the transfer registration of ownership has already been made in the name of a third party on the real estate in dispute, the applicant for provisional disposition will no longer benefit from applying for the order of prohibition of disposal. According to the records, the creditor applied for provisional disposition on the real estate in this case to the debtor, and the court made a provisional disposition citing it, thereby making a provisional disposition admitting it. Upon the debtor's objection, the court made a provisional disposition admitting it, and the creditor appealed against the provisional execution decision that revokes the above provisional disposition, but the provisional disposition excluding the above provisional disposition excluding the real estate in this case was cancelled due to the execution of the judgment of revocation of provisional disposition excluding the above provisional execution decision, while the above provisional disposition excluding the above provisional disposition excluding the real estate in this case had been completed at the end of the argument of the court below.

Therefore, since the application for provisional disposition of this case already lost the benefit of the application and becomes unlawful, the judgment of the court below that judged the validity of the application cannot be maintained in this respect, and thus, it shall not be dismissed. Since it is deemed sufficient to directly judge the party members of this case, the application for provisional disposition of this case is dismissed, and the total costs of the lawsuit are so decided as per Disposition by the assent of all participating Justices who reviewed the debtor's burden in view of the circumstances of the case.

Justices Seo Sung-sung (Presiding Justice)